Distracted by New York Times public editor Clark Hoyt’s inanities and the deeply defective Bazelon/Lithwick defense of Linda Greenhouse’s conflict of interest, I hadn’t assembled an updated narrative of Greenhouse’s course of conduct that includes some nuggets provided by Hoyt. So, at the risk of again being called a meanie for carefully documenting the facts, I provide this narrative. (If any reader thinks I’m mistaken in any of my facts or inferences, please let me know. As always, I will promptly correct any errors.)
1. In January 2006, Greenhouse’s husband, Eugene Fidell, submitted this amicus brief in support of detainee Salim Ahmed Hamdan in the Hamdan case in the Supreme Court. Fidell submitted the brief as counsel of record for his institutional alter ego, the National Institute of Military Justice (“NIMJ”) (of which he is founder and president), and for the D.C. Bar.
2. Notwithstanding her husband’s participation in Hamdan, Greenhouse continued to report on the case and never disclosed to readers her conflict of interest. On June 30, 2006, the day after the Court’s ruling in Hamdan, Greenhouse produced a remarkably biased account of the ruling (as law professor Peter Berkowitz pointed out in September 2006 in the paragraphs I quote in point 1 here). I take no position on whether her bias resulted in part from her husband’s role. As I have stated:
Ironically, it is those who generally think that Greenhouse is an objective reporter who ought to have special cause to wonder how it is that her reporting just happened to go haywire in this case in which her husband appeared as counsel of record on an amicus brief in support of detainee Hamdan. (Those of us, by contrast, who regard her reporting on politically charged cases as routinely biased would find it impossible to assess the relative contributions of her spousal bias and her broader political bias.)
3. In March 2006, Fidell submitted this amicus brief in support of the Guantanamo detainees in the Boumediene case then pending in the D.C. Circuit. Fidell submitted the brief for NIMJ. In August 2007, when the same Boumediene case was pending in the Supreme Court, NIMJ again filed an amicus brief. According to Clark Hoyt:
But this time, out of what Greenhouse said was “an excess of caution,” her husband did not sign [the amicus brief] because the case was in the court she was covering.
I infer from Hoyt’s account (including from what Hoyt doesn’t say) that Fidell worked on the brief and authorized it to be filed on behalf of the institute that he heads and that is his alter ego. I infer, further, that Greenhouse was aware of Fidell’s role and that she and Fidell discussed whether to have him put his name on the brief.
Also in the Boumediene proceeding in the Supreme Court, Fidell is listed in the amicus brief submitted on behalf of the Constitution Project (and other entities) as one of the signatories to the Constitution Project’s Statement on Restoring Habeas Corpus Rights Eliminated By The Military Commissions Act.
4. Notwithstanding her husband’s participation in Boumediene, Greenhouse has reported on the case and has never disclosed to readers her conflict of interest.
5. After Clark Hoyt raised Greenhouse’s conflict of interest with her, Hoyt informed me by e-mail in mid-January 2008 that “Linda Greenhouse tells me, categorically, that her husband, Eugene Fidell, has never represented any detainee, is not involved as a lawyer in the case [evidently, Boumediene] about which you wrote and did not file a brief in that case.” As I responded to Hoyt, Greenhouse’s supposedly “categorical” assertions were Clintonesque evasions of the material facts.
In his same e-mail, Hoyt wrote: “I’d appreciate it if you could steer me to the brief you said he [Fidell] filed.” It would seem from Hoyt’s request that Greenhouse not only did not provide Hoyt the relevant briefs in Boumediene, but that she did not even acknowledge to Hoyt that her husband had filed an amicus brief in the D.C. Circuit proceeding and that he had authorized an amicus brief to be submitted on behalf of NIMJ in the Supreme Court. (But maybe Hoyt was being coy with me.) I sent Hoyt links to the briefs (the second of which I located on the New York Times website).
“Like it or not, the perception is that Greenhouse is writing about something in which her husband is a player–and The Times isn’t telling the public.”
In one of his many strange turns, Hoyt concluded that disclosure of Greenhouse’s conflict of interest should be made via her website bio—a means poorly calculated to inform Greenhouse’s actual readers.
Hoyt also relates that at the time of the Hamdan case Greenhouse and her bureau chief agreed (in the bureau chief’s words) that “if her husband represented a party in a case before the Supreme Court, she would not cover that case.” Otherwise, apparently, the agreement was both that she should cover the case and that the Times would provide no disclosure of her husband’s participation in the case. As I’ve discussed (third paragraph here and fourth paragraph here), the line that Greenhouse and her bureau chief drew between being counsel for a party, on the one hand, and being counsel for an amicus or president and alter ego of an amicus, on the other, is a highly implausible one—and not one that anyone has attempted to defend with anything resembling an argument.
7. Greenhouse’s article yesterday on Boumediene, which I discuss here, indicates that she has decided to continue to report on Boumediene without disclosing her conflict of interest to Times readers (and without even the feckless disclosure suggested by Hoyt).
The most puzzling aspect of this whole matter is Greenhouse’s inability or unwillingness to recognize her conflict of interest and to take appropriate corrective action. I will leave it to readers to draw their own conclusions about her conduct.